UNPensionerIndia.com

Monday, January 11, 2010

At a time when the world is short of causes for celebration, here comes a candidate.

It appears that UN Disputes Tribunal (born 1 July 2009) has already cleared no less than 96 cases by the time the year 2009 came to a close! A record of sort!!

Having used this mode of communication to talk to the retiree colleagues and report on the state of affairs regarding our common cause appeal (Case # UNAT 2009-001), let us now bring you up to date on the so called further developments:

1.While our Common Cause Appeal # UNAT 2009-001 has long been submitted (27 Aug/30 Sept 2009) and Respondent’s (UNJSPF) reply received by 28 Oct 2009, we have not heard any news as to when our common cause appeal will be reviewed/hearing scheduled.

2.The official website of the UNAT & UNDT (UN Office of Administration of Justice – www.un.org/en/internaljustice) is seen being built with additional information made available on the internet.

3.Recent addition in the website is the listing (or shopping list) of cases considered by UNDT between July and December 2009. There are about 96 decisions/judgements (UNDT/2009/01 to 96); some of the cases were transferred from the earlier avatar JAB. Also, never mind the list misses out at least two cases (UNDT/2009-61 & 62).

4.Have reviewed a good randomised sample of 50 cases/decisions/judgementswith the following findings:

(a)Most of the cases related to appointments, non-renewal of appointments and extension.

(b)28 cases were rejected;five cases were recommended for mediation/management evaluation;four cases where further submissions were allowed for consideration or full hearing of the case was recommended;threecases where compensation was recommended; a number of cases were rejected because of procedural lapses.

(c)There was a case of sexual harassment and cultural insensitivity involving chief of office, incl a local police complaint by the national staff. Probably due to the uncomfortable nature of the case, mediation and resolution by mutual agreement was recommended.However, no compensation for local costs, nor any news what has finally happened.(Maybe the official is now enjoying a great retirement and/or maybe re-employed as consultant/advisor – the usual revolving door policy or the worldly wisdom:politics is the science and art of the possible!)

(d)Almost in all complaints about non-renewal, non-promotion, and HR related, it appears that the UNDT had had little influence on the management’s judgement and/or decision.The best the UNDT could do even in those cases of apparent abuse of authority, only some form of compensation could be offered.

(e)Right now there is no information on the results of several mediation efforts recommended.

(f)There seems a tendency to accept the management argument/contentions at face value; in other words, UNDT may not be able to do any special independent investigation into such matters, again without calling for help from the management itself!? This may also mean: UNDT’s capacity may be limited by design.

(g)In one case, the competence and independence of the JAB/UNDT judges were seen questioned, but no resolution!

(h)In one or two cases, the counsels for the staff were allowed to withdraw.

(i)There was at least one instance where UNDT had to make some modifications/corrections to his/her earlier oral judgement when the same was rendered into written words.

5.Based on these findings, maybe some observations are possible:

5.1Since the UN staffs have neither recourse to the independent national judicial process nor any “real” legal defence support, they have to contend with the best of the worst situation at hand. Maybe this caused a majority of cases being rejected outright; or can we say that the UNDT decisions tend to favour management practices without any benefit of doubt to other side.

5.2Seen from another angle, complaining staff may have been ill-informed, ill-equipped and ill-prepared in the pursuit of justice. This may be a reflection on the quality of staff recruited/trained and being brought into system in the first place or there are remediable gaps in the HRM practices and other internal systems.

6.If the new avatar UNDT & UNAT should have any impact in improving the internal justice system and to enhance quality assurance and standards (e.g. transparency, independence, open objectivity, fairness, equity and accountability), we need to see some real breakthroughs in the following areas:

(a)Close monitoring & evaluation of the functioning of the UNDT and UNAT processes and reports prepared every six months and place such findings on public domain;

(b)We need to keep remembering the socially inspired justice template: justice should be seen and should be seen to be done; many a culprit might escape the net, but not single innocent should be punished;

(c)This monitoring and evaluationshould be done, inter alia, in the context of norms described in the UN Charter and the Universal Declaration of Human Rights;

(d)A matrix of lessons learntthru the cases processed by UNDT & UNAT and follow up actions recommended, together with an “action taken report” should be available in the public domain – at least twice a year.

(e)An efficient and effective mechanism to review regularly the performance of the UNDT/UNAT judges incl. their judicial erudition, mental propensities, biases, prejudices, etc. These are the most important aspects since the judges are appointed by the UN GA and no one else has any supervisory control nor any one person/group/committee seems entitled to judge the quality of their performance.

(f)Last but not the least, an effective and sufficient budgetary allocation should be in place to ensure that the new reformed internal justice system is not under-nourished, under-funded and handicapped, and do not suffer from the same kind of resource crunch that afflicted its earlier incarnations.

7.The noble laureate, Amartya Sen, in his latest book “The Idea of Justice” argues that “justice” cannot remain only as an ideal and beyond our grasp, but should actually guide our practical decisions and enhance our lives and faith in/on the system. If this is so, then UNAT and UNDT should be seen qualified/deserving to become beacon of our hopes and should facilitate a holistic approach to the decision-making (both the management and staff have responsibilities too in this area) and help remove at least most of the remediable injustices in the system and also in the convoluted human minds managing/manipulating/controlling the system.

Thursday, December 31, 2009

Monday, November 30, 2009

Among many great things that can be learnt from ancient Eastern Wisdom is to gain an understanding for the following human fundamentals:

1. Who are we and why are we here?2. What is the nature of human nature?3. How and why should we be related to the planet on which we live?4. How are we to live together satisfactorily and sensibly?5. How are we to develop our individual potentialities?and finally,6. What is the relationship between living beings and nature, and how we nurture this relationship(?), so that we can validate our understanding to the question # (1) above.

One of the best choices for the UN retirees (or for that matter any retiree) to rediscover himself/herself and to strengthen our understanding and activity is by honestly answering the above questions.Perhaps, exposure to or participation in the TED group (http://www.Ted.com/) could help to discover ourselves and spread the right message(s) for right living.Jai Ho!V.Muthuswami/Chennai, India

Wednesday, November 4, 2009

Probably some of you are aware that a number of retirees submitted a common cause appeal to the Standing Committee of the UNJSPB requesting restoration of full pension once the lump-sum amount + interest get fully recovered by UNJSPF in about 11-13 year period, thus ensuring equity among all pensioners. The Standing Committee turned down the request without even bothering to hear any of the appellants (a requirement under UN Disputes Tribunal) and decreed that the reduced pension shall remain for life.

Disappointed and not convinced of the justifiability of the decision, we have now filed a common cause appeal at the UN Appeals Tribunal as its inaugural case (Case # UNAT 2009-001) of its coming into being with a promise to uphold true justice. Have also appealed for oral hearing when the UNAT is ready to review the case.

Our appeal is based inter alia on the following principles:

1) As UN agency, UNJSPF regulations, rules and procedures/methods should remain consistent with the foundational principles of the UN, viz. UN Charter and UDHR (especially relevant to equity, fairness and Justice).

2) Nowhere in these regulations, forms et al, is there any explicit clause, statement or any mention to indicate life time denial of full pension (for 1/3 lump sum recipients). Is this not a very important element of any rule that should not be left for speculation?

3) Pension commutation being a usual procedure in civil service pension schemes, the provision to "commute" - meaning exchange or substitute for another - cannot remain open-ended for life but specifically quantified and articulated. This is not the case with UNJSPF regulations.

4) Since the lump sum is recovered by way of reduced monthly pension - what should this requirement be called except "indebtedness to the Pension Fund"? Is this indebtedness any different from any money owed to the Pension Fund under Article 43? If this indebtedness is in any manner different , then why is it not finding a separate/special mention in this Article 43?

5) Once the indebtedness to Pension Fund is fully paid, then why should not all pensioners be treated on the basis of equity? Is it something that the lump sum recipients have no business to remain alive beyond the originally estimated actuarial age of life expectancy? Is it not a "remediable injustice" that can be eliminated with reason and good governance?

6) Even the premature death of beneficiaries before they had repaid the lump sum does not drain the fund, since, had they lived their full life, they would have drawn the two-third pension, which is more than the one-third which the Fund doesn't get.

7) Contrary to imagined concerns, by restoring full pension to 1/3 lump sum recipients, no one, i.e., those who did not take the lump sum, will not lose one penny.

8) Under the present procedure, the Fund stands to gain an unconscionable amount of gains -- at the expense of a group of beneficiaries -- against all principles of fairness and morality.

9) Not confusing the above fundamentals with other fiduciary and economic issues, the real "remediable injustice" can always be addressed within the economic and other operational framework, without sacrificing basics - equity, fairness and justice.

Our hope and prayer is that our common cause appeal will be heard expeditiously and real justice is rendered in the not too distant future.

Please do share your comments and views as these could be of help should there be an opportunity (which we have requested) of arguing our common cause appeal.

S.P. Sundaram/V.Muthuswami/G.S.Srinivasan - Chennai, IndiaAppellants of the Common Cause Appeal and also

Tuesday, November 3, 2009

Notes: Official website of UNAT still displays the old statute of the former UN Admin. Tribunal. Until it gets updated, you are welcome to refer to the "mother" document here. However, for full text of UN Gen. Assembly Resolution, please "google" UN Document # A/RES/63/253.

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Annex I

Statute of the United Nations Dispute Tribunal

Article 1

A tribunal is established by the present statute as the first instance of the twotier

formal system of administration of justice, to be known as the United Nations

Dispute Tribunal.

Article 2

1. The Dispute Tribunal shall be competent to hear and pass judgement on an

application filed by an individual, as provided for in article 3, paragraph 1, of the

present statute, against the Secretary-General as the Chief Administrative Officer of

the United Nations:

(a) To appeal an administrative decision that is alleged to be in noncompliance

with the terms of appointment or the contract of employment. The terms

“contract” and “terms of appointment” include all pertinent regulations and rules

and all relevant administrative issuances in force at the time of alleged

non-compliance;

(b) To appeal an administrative decision imposing a disciplinary measure;

(c) To enforce the implementation of an agreement reached through

mediation pursuant to article 8, paragraph 2, of the present statute.

2. The Dispute Tribunal shall be competent to hear and pass judgement on an

application filed by an individual requesting the Dispute Tribunal to suspend, during

the pendency of the management evaluation, the implementation of a contested

administrative decision that is the subject of an ongoing management evaluation,

where the decision appears prima facie to be unlawful, in cases of particular

urgency, and where its implementation would cause irreparable damage. The

decision of the Dispute Tribunal on such an application shall not be subject to

appeal.

3. The Dispute Tribunal shall be competent to permit or deny leave to an

application to file a friend-of-the-court brief by a staff association.

4. The Dispute Tribunal shall be competent to permit an individual who is

entitled to appeal the same administrative decision under paragraph 1 (a) of the

present article to intervene in a matter brought by another staff member under the

same paragraph.

5. The Dispute Tribunal shall be competent to hear and pass judgement on an

application filed against a specialized agency brought into relationship with the

United Nations in accordance with the provisions of Articles 57 and 63 of the

Charter of the United Nations or other international organization or entity

established by a treaty and participating in the common system of conditions of

service, where a special agreement has been concluded between the agency,

organization or entity concerned and the Secretary-General of the United Nations to

accept the terms of the jurisdiction of the Dispute Tribunal, consonant with the

present statute. Such special agreement shall provide that the agency, organization

or entity concerned shall be bound by the judgements of the Dispute Tribunal and be

responsible for the payment of any compensation awarded by the Dispute Tribunal

in respect of its own staff members and shall include, inter alia, provisions

concerning its participation in the administrative arrangements for the functioning

of the Dispute Tribunal and concerning its sharing of the expenses of the Dispute

Tribunal. Such special agreement shall also contain other provisions required for the

Dispute Tribunal to carry out its functions vis-à-vis the agency, organization or

entity.

6. In the event of a dispute as to whether the Dispute Tribunal has competence

under the present statute, the Dispute Tribunal shall decide on the matter.

7. As a transitional measure, the Dispute Tribunal shall be competent to hear and

pass judgement on:

(a) A case transferred to it from a joint appeals board or a joint disciplinary

committee established by the United Nations, or from another similar body

established by a separately administered fund or programme;

(b) A case transferred to it from the United Nations Administrative Tribunal;

as decided by the General Assembly.

Article 3

1. An application under article 2, paragraph 1, of the present statute may be filed

by:

(a) Any staff member of the United Nations, including the United Nations

Secretariat or separately administered United Nations funds and programmes;

(b) Any former staff member of the United Nations, including the United

Nations Secretariat or separately administered United Nations funds and

programmes;

(c) Any person making claims in the name of an incapacitated or deceased

staff member of the United Nations, including the United Nations Secretariat or

separately administered United Nations funds and programmes.

2. A request for a suspension of action under article 2, paragraph 2, of the present

statute may be filed by an individual, as provided for in paragraph 1 of the present

article.

Article 4

1. The Dispute Tribunal shall be composed of three full-time judges and two

half-time judges.

2. The judges shall be appointed by the General Assembly on the recommendation

of the Internal Justice Council in accordance with Assembl y resolution 62/228. No

two judges shall be of the same nationality. Due regard shall be given to

geographical distribution and gender balance.

3. To be eligible for appointment as a judge, a person shall:

(a) Be of high moral character; and

(b) Possess at least 10 years of judicial experience in the field of

administrative law, or the equivalent within one or more national jurisdictions.

4. A judge of the Dispute Tribunal shall be appointed for one non-renewable term

of seven years. As a transitional measure, two of the judges (one full-time judge and

one half-time judge) initially appointed, to be determined by drawing of lots, shall

serve three years and may be reappointed to the same Dispute Tribunal for a further

non-renewable term of seven years. A current or former judge of the United Nations

Appeals Tribunal shall not be eligible to serve in the Dispute Tribunal.

5. A judge of the Dispute Tribunal appointed to replace a judge whose term of

office has not expired shall hold office for the remainder of his or her predecessor ’s

term, and may be reappointed for one non-renewable term of seven years, provided

that the unexpired term is less than three years.

6. A judge of the Dispute Tribunal shall not be eligible for any appointment

within the United Nations, except another judicial post, for a period of five years

following his or her term of office.

7. The Dispute Tribunal shall elect a President.

8. A judge of the Dispute Tribunal shall serve in his or her personal capacity and

enjoy full independence.

9. A judge of the Dispute Tribunal who has, or appears to have, a conflict of

interest shall recuse himself or herself from the case. Where a party requests such

recusal, the decision shall be taken by the President of the Dispute Tribunal.

10. A judge of the Dispute Tribunal may only be removed by the General

Assembly in case of misconduct or incapacity.

11. A judge of the Dispute Tribunal may resign, by notifying the General

Assembly through the Secretary-General of the United Nations. The resignation

shall take effect from the date of notification, unless the notice of resignation

specifies a later date.

Article 5

The three full-time judges of the Dispute Tribunal shall exercise their functions in

New York, Geneva and Nairobi, respectively. However, the Dispute Tribunal may

decide to hold sessions at other duty stations, as required by its caseload.

Article 6

1. The Secretary-General of the United Nations shall make the administrative

arrangements necessary for the functioning of the Dispute Tribunal, including

provisions for the travel and related costs of staff whose physical presence before

the Dispute Tribunal is deemed necessary by the Dispute Tribunal and for judges to

travel as necessary to hold sessions at other duty stations.

2. The Registries of the Dispute Tribunal shall be established in New York,

Geneva and Nairobi, each consisting of a Registrar and such other staff as

necessary.

3. The expenses of the Dispute Tribunal shall be borne by the United Nations.

4. Compensation ordered by the Dispute Tribunal shall be paid by the United

Nations Secretariat or separately administered United Nations funds and

programmes, as applicable and appropriate, or by the specialized agency,

organization or entity that has accepted the jurisdiction of the Dispute Tribunal.

Article 7

1. Subject to the provisions of the present statute, the Dispute Tribunal shall

establish its own rules of procedure, which shall be subject to approval by the

General Assembly.

2. The rules of procedure of the Dispute Tribunal shall include provisions

concerning:

(a) Organization of work;

(b) Presentation of submissions and the procedure to be followed in respect

thereto;

(c) Procedures for maintaining the confidentiality and inadmissibility of